I always counsel Lawful Permanent Residents with past criminal convictions to be careful before traveling abroad. Before the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) took effect on April 1, 1997, lawful permanent residents (LPRs) with criminal convictions who traveled abroad did not, upon their return, face inadmissibility – then called excludability – if their trip was brief, casual and innocent.
After IIRIRA, however, the Board of Immigration Appeals (BIA) determined that the new law eliminated this Fleuti exemption for LPRs who had committed a criminal offense that fell within the grounds of inadmissibility. On March 28, 2012 in Vartelas v. Holder, the Supreme Court held that the Fleuti doctrine still applies to LPRs with pre-IIRIRA convictions who travel abroad.
The Court did not reach the question of the continued viability of the Fleuti doctrine for LPRs with post- IIRIRA convictions. Under its retroactivity jurisprudence, the Court found that the legal regime in force at the time of a person’s pre-IIRIRA conviction governs. As a result of the Supreme Court’s decision, Mr. Vartelas’ removal proceedings should be terminated on remand. This decision directly impacts other Green Card holders with pre-IIRIRA convictions who have been placed, or are at risk of being placed, in removal proceedings after a brief trip abroad.
A Green Card holder with a criminal background should weigh his or her options carefully before traveling abroad even after the new case, Vartelas v. Holder. At a minimum the person should seek the assistance of an immigration attorney in order to make an informed decision about their travel plans. Being aware of the possible consequences gives the Green Card holder an opportunity to not only make an informed decision, but to prepared in case of trouble upon return.